The government of Kenya has sent a letter to the UN Security Council calling on members to intervene and terminate charges of crimes against humanity against newly elected President Uhuru Kenyatta and his deputy William Ruto at the International Criminal Court (ICC). The pair deny allegations of responsibility for the 2007 post-election violence, in which more than 1000 people died and an estimated 500,000 were displaced. The Council should allow the court to carry out its judicial functions and not intervene in the Kenya case.
The prosecutor of the ICC used discretionary powers under article 15 of the Rome Statute, which established the ICC in 2002, to bring charges of crimes against humanity against six individuals in the Kenya situation. The ICC has jurisdiction over war crimes, crimes against humanity, and genocide. The prosecutor has proprio motu powers in state parties only in situations where the government is either unwilling or unable to carry out investigation or prosecution. Kenya is a state party to the Rome Statute.
Kenya has previously challenged ICC jurisdiction based on claims of inadmissibility under article 17 of the statute, which the Court denied, stating that a “case is only inadmissible before the Court if the same suspects are being investigated by Kenya for substantially the same conduct." The ICC found that while Kenya claimed that it was investigating the situation concerning the 2007 post-election violence and making appropriate reforms, its investigations did not reach the individuals indicted by the ICC.
Kenyans elected President Kenyatta and deputy Ruto in March 2013, while their cases were ongoing at the ICC. Kenyatta, who had promised full cooperation with the Court, is now requesting a termination of the case. Charges against one of the defendants, Francis Kirimi Muthaura, were withdrawn in March 2013. Among the reasons given by the prosecutor was "the disappointing fact that the government of Kenya failed to provide my office with important evidence, and failed to facilitate our access to critical witnesses who may have shed light on the Muthaura case." The functioning of the Court is premised on cooperation among all parties, and the prosecutor cannot fulfill her duties when a government in a situation country refuses to provide support in the gathering of evidence.
The UN Security Council has power under article 16 of the Rome Statute to defer cases before the ICC at 12 month intervals, but the statute does not indicate that the Council has power to terminate an ongoing trial. According to the letter signed by Macharia Kamau, Kenya's permanent representative to the UN, what they are asking for is not a deferral, but an "immediate termination of the case at the Hague without much further ado."
Kenya claims to be of "considered opinion that the manner in which the cases are being conducted is neither impartial nor independent." This perception of the Court is flawed, because the problems surrounding the Kenya situation are not with ICC; they are problems pertaining to the difficulty of collecting evidence in a kingdom to try a reigning king. The prosecutor is responsible enough to drop charges where the pursuit of justice seems impossible, and ICC judges are capable of rendering impartial justice. The Security Council cannot become a tool for arbitrary judicial review, intervening to terminate a case whenever a defendant feels uncomfortable with the work of the Court. Kenya was given ample time to follow the Principle of Complementarity, which is a core provision in the statute. If Kenya has issues with the charges, it must take them up with the Court.
In the letter, the government of Kenya makes repeated reference to sovereignty and the status of the two defendants, but Kenya is aware that the Court is bound only by the Principle of Complementarity as a matter of sovereignty in relation to states parties, granting primacy to national criminal jurisdiction. Kenya clearly failed to implement complementarity as required by the statute, which is exactly what triggered ICC prosecutorial jurisdiction over the case.
The object and purpose of the Rome Statute is to enforce individual criminal responsibility for crimes within the jurisdiction of the Court, and official status is not an excuse. The Court has jurisdiction over individuals who commit the most serious crimes of concern to the international community, and nothing in the statute indicates that the Security Council can order the Court to drop charges against a defendant in an ongoing prosecution.
It might as well be, as the letter suggests, that the case is "falling apart in the face of a lack of evidence, withdrawal of witnesses and incompetent prosecution," but it is up to the Court to determine the merit of a case before it. The Security Council cannot make that determination. Kenya's claim that the "verdict of the Kenyan people flies in the face of any or any contention that has been said of the suspects and involvement of crimes against humanity for it is the same humanity who have spoken clearly [by electing Kenyatta and Ruto]," is untenable. As Prosecutor Fatou Bensouda stated in her message to the Kenyan people when dropping charges against Ambassador Muthaura, the real victims are "the men, the women, and the children, who were killed, injured, raped, or forcibly displaced from their homes — and whose voices must not be forgotten."
Whatever the complexity, the Court is competent to decide cases before it. The Security Council must dismiss Kenya's attempt to politicize the Court by seeking procedures outside the Court that are evidently in contravention of judicial independence. The best place to contest charges within the provision of the Rome Statute is at the ICC. It is in the interest of international criminal justice that Kenyatta and Ruto have their day in court.
This article was previously published in the New Jurist Magazine.